Common Issues trial judgment: The NFSP

The NFSP's lovely Post Office-funded headquarters in Shoreham-by-Sea

The National Federation of Subpostmasters is a hopelessly compromised organisation. Simply put, the NFSP has abused its position by consistently failing to support its members when they needed it most.

Worse still, the NFSP has allowed its (now discredited) veneer of independence to be used by the Post Office as evidence that any Subpostmasters having problems with Horizon were either wrong, incompetent, or covering up some kind of criminal activity.

The NFSP holds a uniquely responsible position. It presents itself as the independent voice of Subpostmasters and is the only representative body the Post Office will deal with.

For journalists and politicians, membership bodies are one of the first ports of call when it comes to finding out more about a potential problem within an organisation.

By failing to raise concerns about Horizon publicly, and by suggesting (through its silence) that the Horizon problem is a small matter of minor importance, the NFSP has done worse than nothing. It has caused irreparable damage.

It has allowed the campaigning Subpostmasters to be presented as a tiny, disaffected minority, and it has hung its members out to dry.

The reasons why are two-fold.

The first, as former General Secretary George Thomson explained to a parliamentary inquiry, is about protecting the wider estate:

"We have to be careful that we are not creating a cottage industry that damages the brand and makes clients like the DWP and the DVLA think twice. We do £350 million a week. We pay out £18 billion a year for the DWP in Government benefits. The DWP would not have re-awarded the Post Office card account contract, which pays out £18 billion a year, in the last month if they thought for a minute that this computer system was not reliable... If we are not careful, we damage the brand, we damage the franchise and we cost my members’ ability to sell the franchise."

As a matter of policy the NFSP appears to think it is far better to throw the odd member under a bus than potentially devalue the product.

The other reason is the total corporate capture of the NFSP by the Post Office. The NFSP was apparently once a respectable union, independently representing its sub-paying members.

It is now effectively a department of the Post Office, funded by the Post Office and subject to an agreement which makes that funding contingent on a gagging clause. The clause requires the NFSP not to "take any action or engage in any commercial activities which brings, or is likely to bring, POL's [Post Office Limited's] name or reputation into disrepute."

Furthermore, a High Court judge has found both the Post Office and NFSP intended that agreement be kept secret.

The Post Office effectively controls the NFSP

Let's have a little dig into what else that Bates v Post Office Common Issues trial judgment says, shall we? Here goes:

"It is obvious, in my judgment, that the NFSP is not remotely independent of the Post Office, nor does it appear to put its members’ interests above its own separate commercial interests."...

"I do not consider that the NFSP can in these circumstances properly be considered to be independent, or to be acting in the interests of SPMs [Subpostmasters], given the way it involved its own commercial interests as a condition [of agreeing a settlement for Subpostmasters around the introduction of the NTC]"...

"[Nick Beal from the Post Office] said that it was always the intention of the Post Office and the NFSP that the contents of the Grant Framework Agreement (“GFA”) made with the NFSP would be made public. I reject that evidence, which is contrary to the detailed confidentiality provisions within the GFA itself."

There's so much more. In fact, the judge devotes an entire section of his 180,000 word judgment to the NFSP. He does this because it became apparent to him the Post Office is using the NFSP as a weapon against the claimants. He notes:

"As an example, in its written Opening [the Post Office] submitted “it should be noted that the National Federation of Subpostmasters (“NFSP”), which is the organisation which represents SPMs and their interests nationwide, does not support this action and does not endorse the factual premises of the Claims.”

and:

"Mrs Van Den Bogerd [Post Office director] also gave evidence that the NFSP has publicly supported the Post Office’s view that Horizon is robust. The Post Office therefore relies upon this support by the NFSP to support its stance in this litigation."

"Highly suspicious"

The judge decides this interesting dynamic needs to be properly investigated.

First he dissects the NFSP's actions with regards to protecting its own position during negotiations over the implementation of the Network Transformation project.

He quotes a 2013 email between the then General Secretary of the NFSP George Thomson and the Post Office in which Mr Thomson lists his demands for NFSP funding and compensation for members leaving the Post Office stating: "a signed agreement with the blood of both myself and Paula [Vennells] is necessary on the future of the NFSP before any agreement is granted on either NT and other points."

The judge considers Mr Thomson's email:

"demonstrates that the NFSP was only prepared to agree what amounted to an increase in its members’ potential compensation, if its own future was assured by the payment of substantial sums to it. I find that this shows that the NFSP put its own members’ interests well below its own, and I also find that the NFSP is not fully independent."

This email leads to the NFSP/Post Office "Grant Framework Agreement", which is bound by strict confidentiality stating: "neither party shall make public statements about this Agreement and/or the relationship established by this Agreement without the prior written agreement of the other party."

The GFA is the same agreement which contains the gagging clause described earlier. This, remember, stops the NFSP from taking "any" action which could bring the Post Office's "name or reputation" into disrepute.

The GFA only came to light after a protracted campaign by serving Postmaster and CWU rep Mark Baker, whose determined letter-writing and knowledge of the Freedom of Information Act eventually forced the Post Office to publish it.

The NFSP maintains it always meant to publish the GFA, despite clauses which require both parties to keep it confidential. The judge is having none of it. In paragraphs 580-589 of the judgment he decries the torturous manoeuvrings the NFSP uses to justify such a claim as "highly suspicious". He concludes:

"I reject the evidence that both the Post Office and the NFSP always intended that the GFA would be made public... That assertion is verging on insulting the intelligence of anyone who has read the GFA itself. The drafting of the actual document itself – which has obviously been carefully done, by highly skilled legal advisers – is directly to the contrary. The assertion is also contrary to the Post Office’s own initial responses to the Freedom of Information requests, from the very team at the Post Office whose specific role in life is to deal with such requests."

He adds:

"There is also evidence before the court that the NFSP has, in the past, put its own interests and the funding of its future above the interests of its members,"

He rules:

"The NFSP is not an organisation independent of the Post Office, in the sense that the word “independent” is usually understood in the English language. It is not only dependent upon the Post Office for its funding, but that funding is subject to stringent and detailed conditions that enable the Post Office to restrict the activities of the NFSP. The Post Office effectively controls the NFSP." [my italics]

Let that soak in for a moment - a High Court judge has ruled the NFSP appears to be in league with the Post Office, has put its own interests above its members and is not remotely independent.  Taking all this into account, it is perhaps not surprising that he notes, "the fact that the NFSP does not support the Claimants in this litigation is entirely to be expected."

Oowee.

The NFSP response

When the Common Issues trial judgment was handed down on 15 March, the Post Office, to its credit, responded by acknowledging its severity, stating:

"We take this judgment and its criticisms of Post Office very seriously. While the culture and practices of the business have improved in many ways over the years, the Judge’s comments are a forceful reminder to us that we must always continue to do better.  We have taken his criticisms on board and will take action throughout our organisation."

This was the first time the Post Office had begun to recognise that the campaigning Subpostmasters and their MPs who have been jumping up and down for years might have a point.

Admittedly a week later the Post Office was applying to have the judge recused on grounds of bias, but hey, a leopard doesn't change its spots overnight.

The NFSP, however, doesn't even have the self-awareness to accept the judge's criticisms, describing them in a circular Q&A to members as "inaccurate" and "unfair".

They contradict the judge's evidenced finding that their confidential agreement was designed to remain secret by asserting "The GFA was always intended to be a public document" without further explanation. Its removal from the NFSP website in September 2018 is described as being part of a "refresh" and its sudden reinstatement during the common issues trial in November 2018 is framed as an act of public service, done "in the spirit of transparency" - something the judge found simply didn't stand up to scrutiny.

The circular went on to assert that the NFSP can and does challenge and criticise the Post Office, that the GFA (despite the evidence in black and white) isn't that restrictive really, and that it always puts its members first. Again no evidence for this was offered.

It gets worse. A section of the circular asks:

"Has the NFSP’s status as a trade association, funded by Post Office Ltd, prevented it from supporting the Justice For Subpostmasters Alliance? 

No. The claims being brought under the current litigation are historic cases and almost of all of them pre-date the Grant Framework Agreement; at the time, the NFSP was a trade union funded by member subscriptions."

The apparent insinuation that the NFSP has ever supported the JFSA or that it might well be tacitly doing so now is a sly bit of wordplay. The NFSP has, to the best of my knowledge, never supported the JFSA, either when the NFSP was a membership organisation or union. Not just because nowadays it is contractually unable to do so, but because it never wanted to.

The next Q&A is even more risible:

"Why is the NFSP not supporting the claimants? 

Most of the cases date back to the early 2000s - before the N FSP became a trade association. Some of the claimants contacted the NFSP and we offered support and advice at that time. Many chose to take their own courses of action and act independently, including those who pursued a legal route. However, we have never tried to stop subpostmasters getting involved in the group litigation."

It comes to something when a membership organisation is boasting that it has never actively tried to stop its members from seeking justice. That's a feather in the cap.

I wonder why those members, after requesting support and advice (which turned out to be not to question the integrity of Horizon) decided to take their own courses of action.

The circular goes on to list the work the NFSP has done and is doing for its members, and I don't doubt it does do some good, or there wouldn't be any reason for it to exist.

Unfortunately it failed to help a relatively large number of members when they desperately needed it most. I have listened to the tales told by campaigning Subpostmasters about the first organisation they turned to when they realised the Post Office was going after them.

In many cases it was the NFSP, and in almost every case (there are some honourable exceptions at local level), the NFSP completely failed, because it had decided, as a matter of policy, not to question the integrity of Horizon.

This directly resulted in the NFSP's own members being suspended, sacked, prosecuted, criminalised, hounded for their life savings and ruined.

These people depended on the NFSP for protection. They got eaten alive.

The NFSP's response to the High Court judgment suggests it doesn't even have the corporate self-awareness to realise it needs to go back and investigate what it has done in the past and start to make changes.

I suspect it is not long for this world.

Yet while it is still in existence, the NFSP remains capable of doing huge damage. It is powerful. It has a voice. It is still relied on by 8,000 Subpostmasters to protect their interests. Any of those Subpostmasters could have problems with Horizon at any time.

The Post Office has the NFSP exactly where it wants it - in its back pocket. It can ignore it, collude with it, or use the NFSP's status and lack of involvement in this litigation as a fig leaf to protect its own interests. It does so, of course, safe in the knowledge that the NFSP won't get out of line. It has the contractual capacity to pull the NFSP's funding if it takes exception to any criticism the NFSP might dare make.

I asked the NFSP for a statement or interview so it can state its case in the light of the judgment and my criticisms above.

The response in full: "We won’t be responding to your questions or taking part in an interview."

Way to go, lads.

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I realise this blog is read by serving and former Subpostmasters, many of whom were/are NFSP members. Most of the stories I've heard about the NFSP have been negative, but I doubt that's the whole picture. If there are examples of Postmasters who were helped out of a Horizon-shaped hole by the NFSP, and I'm sure there are, I'd be delighted to hear from you. Please use the contact form on this website.

Likewise if you have an NFSP horror-story, please let's hear it.

I am also more than happy to have a confidential conversation or correspond with any serving member of the NFSP at any level. Please do get in touch. Background information is very welcome.

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NFSP crawls out from under its rock

Comedy clown car Subpostmaster representative organisation, the National Federation of Subpostmasters, has finally, in a statement to its members, said it thinks Horizon isn't all that.

The NFSP is wholly complicit in the Horizon scandal. It threw its own members under a bus, as policy, in order to protect the Post Office brand. And now, in a cynical and desperate move, it has turned on the Post Office in order to justify its existence.

Let us be clear. The NFSP is a department of the Post Office. The NFSP exists because it is funded by the Post Office. It does not receive membership subscriptions. The Post Office gives it money. Lots of it. Every year.

I have tried, throughout my interest in this story, to be as objective and fair as possible to all parties. It is difficult to ignore things which are both obvious and happening before your eyes, but you need to ask if there might be one or more less obvious, alternative explanations. With or without hard evidence (which I have been lucky enough to stumble across over the last nine years), you still need to contextualise, provide balance, ask questions and seek answers.

I firmly believe that as a result of this litigation, and the judge's conclusions, those Subpostmasters who are on the take are likely to find thieving from the Post Office so much easier than before.

But because the Post Office assumed guilt in innocent people, went after them until they were utterly crushed, it has completely ****ed up its entire business model.

The Post Office is now in a situation whereby it is having to pay compensation to innocent people yet has no clear way of stopping criminal Subpostmasters (of the 9,000-odd out there - there might be a few) defrauding the system.

The chickens are coming home to roost.

I will give credit to the Post Office. It did bad things, it sent threatening legal letters to journalists trying to hold it to account, but it was only ever trying to protect its own (ultimately indefensible) position.

But the NFSP... this is an organisation which supposedly exists purely to help Subpostmasters.

The NFSP should have been looking out for its members from the off, but didn't. I wrote about this before the first trial judgment.

That judgment utterly destroyed the NFSP's credibility. And now the NFSP comes crawling towards the moral high ground like some sort of rotting, zombified Uriah Heep, wringing its hands and bleating that it has been wronged.

Have a read of what the NFSP Chief Executive, Calum Greenhow, had to say in a circular sent to members yesterday:

"The NFSP has taken the time since Monday to read and reflect on the judgment, how it relates to the first ‘Common Issues’ trial judgment (delivered in March 2019), and what the implications are for the network and the Post Office. 

"The Post Office prides itself as being the most trusted brand on the High Street. The verdicts issued by Justice Fraser challenge that perception....The NFSP is therefore extremely disappointed by the Post Office's behaviour in light of the verdict that the Horizon system was not fit for purpose until very recently. 

"By implication of this verdict, the Post Office has misled the NFSP for years about the reliability of the Horizon system."

The NFSP has been "misled" by the Post Office. For years. And the NFSP went along with it?

Worse, actually.

On 3 Feb 2015, the NFSP's then General Secretary George Thomson told MPs during a select committee inquiry without offering any evidence:

"Over the 15 years, the Horizon system has been fantastically robust." and Horizon had been "a very strong system from day one."

On the subject of IT errors, Thomson dismissed them, saying: "Sub-postmasters sometimes think that the problem has to be the Horizon system when in effect it was mistakes by members of staff or misappropriation."

and re the Post Office: "on Horizon, it has done nothing wrong."

This is not an organisation passively accepting the Post Office line. It is actively promoting a lie.

Take a look at the branch circular issued by the NFSP immediately after the August 2015 Panorama programme.

The NFSP states categorically to its members:

"the NFSP has not received calls from subpostmasters querying Horizon and alleging systemic failings. If there were a widespread problem, our subpostmasters would have made us aware of it. As a result we have no choice but to conclude that Horizon is a fundamentally sound and safe system." [my italics]

Not a single call from a Subpostmaster querying Horizon? Really?!

Not only was the NFSP failing to do anything - whilst presenting itself to MPs as an independent and objective organisation it was actively working against the interests of some of its most isolated and desperate members.

And the Post Office was quick to attempt to use this to its advantage in court. As Mr Justice Fraser says in the first trial judgment:

"the NFSP has publicly supported the Post Office’s view that Horizon is robust. The Post Office therefore relies upon this support by the NFSP to support its stance in this litigation."

Let's go back to yesterday's circular. Mr Greenhow states:

"As outlined by Justice Fraser, the NFSP raised concerns to the Post Office about problems our members have experienced with the system; repeatedly we were told that the system was robust, and that user error is the primary cause of problems."

There is evidence (which the Post Office tried to bury) that the NFSP had raised concerns about Horizon (despite the NFSP telling MPs and its members there were no concerns).

And in the above paragraph the NFSP tells its members it believed the Post Office. Because....?

The NFSP Chief Executive goes on:

"Clearly, a significant amount of work will be required to get the relationship between the Post Office and the network back on an even keel – and the NFSP will play a central role in this. You have my word that we will do everything possible to ensure a situation like this never happens again."

A central role? Everything possible? This is the NFSP, which a High Court judge ruled has "put its own interests and the funding of its future above the interests of its members" and "is not an organisation independent of the Post Office."

It's cretinous. And would be laughable were so many lives not ruined as a result of the NFSP's inaction.

The final paragraph of Mr Greenhow's circular demonstrates the paucity of the NFSP's scope as he states:

"any current or former Subpostmasters who believe they have been held responsible for losses within their post office business that were no fault of their own should contact NBSC on 03333 455567 or at ComplexCaseTeam@postoffice.co.uk to raise the issue."

Call the Post Office helpline. Don't call the NFSP. Goodness, no. Email or call the Post Office instead. What could possibly go wrong?

Way back in 2013 I had a conversation with a Private Eye journalist about the IT cock-up stories the Eye had covered throughout the 00s. I told him I was having difficulty trying to find whistleblowers who had worked with the Horizon system, and asked if he had been in touch with anyone from any other IT companies who had blown the whistle on what had gone wrong in the NHS, MOD or wherever.

The Eye hack said no - information had always come from the unions. The unions are the whistleblowers who act as a proxy for their individual members. They go to the media when it's obvious something bad is happening.

The NFSP, by contrast, has never publicly criticised or publicly raised questions about the Horizon system. It has, in fact, until yesterday, done the complete opposite

As a result, some of its members have been unnecessarily suspended, sacked, prosecuted, criminalised, mentally broken and financially ruined.

This scandal could have been avoided if the NFSP had listened to its Subpostmasters, rather than take assurances from the Post Office that there was nothing to see, or worry about.

I hope the NFSP execs reading this can sleep at night. They sold you a lie, lads. And you bought it. And you peddled it for them.

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Post Office admits it can ignore the NFSP

NFSP HQ in Shoreham-by-Sea, funded to the tune of at least £1.5m a year

On its website, the National Federation of Subpostmasters (NFSP) proudly boasts it is "the only organisation that is recognised by Post Office Ltd to represent subpostmasters"

and it clearly states:

"The NFSP provides a number of products and services for the benefit of our members.  This includes representation of subpostmasters in negotiations with Post Office Ltd." [my italics]

The NFSP was thrown out of the trades union movement in 2013, and is now entirely funded by the Post Office. In March a High Court judge ruled that the Post Office "effectively controls" the NFSP.  Furthermore, "the NFSP is not remotely independent of the Post Office, nor does it appear to put its members’ interests above its own separate commercial interests."

In exchange for quietly feathering its own nest with Post Office money (between £22.5m and £37.5m over 15 years), the NFSP sold its members down the river by rubber-stamping and then banging the drum for the disastrous Network Transformation programme, which has had the effect of reducing the income of thousands of Subpostmasters.

One such Subpostmaster, Imran Khan, wrote to the Post Office in April demanding his auto-enrollment into the NFSP be cancelled and the share of money which would otherwise go to the NFSP be used to fund his membership of the Communications Workers Union (CWU).

He believes the NFSP: "have no right to agree on my behalf any paycuts or extra unpaid work or anything which I don't feel suitable myself" and asked the Post Office to "pay me the money you are currently paying on my behalf to NFSP, so that I can be free to pay CWU myself."

He added it would be unfair "if after cancellation of NFSP membership, you are going to keep the money to yourself and not going to use it for my representation." 

Mr Khan, who runs the Frizington Post Office in Cumbria, received a sorry-chum-no-can-do reply from Nick Beal, the Post Office's Head of Agent Development and Remuneration. This is is the same Nick Beal who was a witness for the Post Office in the first Bates v Post Office trial at the High Court.  His evidence on oath was found by the judge to be "completely unrealistic... hard to reconcile with the actual documents" and "slanted more towards public relations consumption rather than factual accuracy".

In his letter to Mr Khan, Mr Beal wrote: "The grant Post Office pays to NFSP is not referable to the membership of specific postmasters.  The grant amount will not reduce as a result of you ceasing your membership with NFSP and so there will be nothing to re-allocate to CWU. Post Office discusses proposed changes to postmaster remuneration with NFSP but is not required to agree changes with them." [my italics]

So the Post Office refuses to recognise any other "union" and can completely ignore the NFSP, despite the NFSP's boasts about representing Subpostmasters in negotiations with the Post Office.

In May this year the BEIS select committee clocked this blatantly unfair set up after the CWU's Andy Furey explained it them. As the bemused MPs listened, he concluded: "It is astonishing. The closed shop agreements went many, many years ago.... There is no independence there. It is the tail wagging the dog."

One of the committee members, Stephen Kerr, agreed, saying: "I join with you in asking for the end of the closed shop. There we go. Conservative MP agrees with trade union official."

There was laughter at that, but the NFSP's contractual inability to properly challenge its paymaster, and its shameful behaviour over Horizon makes it partially culpable for more than a few ruined livelihoods - a failure it hasn't even begun to recognise.

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The NFSP's latest wheeze

NFSP HQ, Shoreham-by-Sea

Comedy Subpostmaster "union" the National Federation of Subpostmasters has revealed its latest wheeze to Better Retailing magazine.

According to an article published on 2 Jan, the NFSP (which is funded by, and therefore effectively a department of, the Post Office) has recruited 15 retailers to run post offices through its Buy a Post Office service, and it is looking to step up this sort of activity in 2019.

Now - I would tell anyone thinking of taking on a Post Office that:

1) by doing so they are agreeing to become legally responsible for an accounting system (Horizon) they have no control over, exposing them to potentially limitless risk.

2) if things go wrong with Horizon and a financial discrepancy is reported they will have to pay it from their own pocket unless they can unequivocally prove it is the fault of an IT system they have no access to.

3) the Post Office assumes in all circumstances Horizon is infallible on the basis it is usually robust.

4) failure to make good any discrepancy could lead to termination without compensation for any lost investment or remuneration.

Obviously any organisation with a passing concern for the interests of any potential Subpostmaster would spell this out as part of their recruitment campaign.

So, a week ago, I sent the following email to the NFSP's Head of Policy and Research, Peter Hall:

"Hi Peter

Happy New Year.

I note from this story in Better Retaiing: https://www.betterretailing.com/retailers-invited-to-buy-post-offices you are helping potential new Subpostmasters buy  post offices and wish to increase your marketing of this service in 2019.

The article states the NFSP gives advice on how to successfully put forward a case for taking over a branch or vacant site. It says your support includes help on writing a business plan and interview tips.
It also quotes David Gold, your retail consultant, as saying:

“We want to help retailers increase the likelihood of being able to take over a post office from a retailer who might be selling their business or retiring. One of the NFSP’s aims next year is to increase marketing of the service to raise awareness of the service to more potential retailers.”

I would be grateful if you could let me know exactly how much the NFSP tells potential purchasers about the known problems with Horizon, and the risks they are exposed to once they have signed the relevant Subpostmaster contract.

Do you also make them aware they have no contractual right to an investigation of Horizon by the Post Office if things go wrong at their branch?

Explaining these risks would help the Subpostmasters when they seek legal advice about signing the contract and help them write their business plan.

Is there a specific script or written piece of advice you give them? Or is it informal? Are the problems people claim to have suffered with Horizon underplayed by Mr Gold, not mentioned at all, or discussed in great detail? Do you suggest or recommend or insist they seek legal advice before signing up?

Also - have you taken legal advice on what you should or shouldn’t tell potential Subpostmasters about the ongoing court case and the potential scale of risk they are exposing themselves to? There is no information that I can see about either of these rather important subjects on your website.

I would be most grateful if you could put me in touch with Mr Gold to find out what he is saying to potential recruits and, if they are willing, I’d be most grateful if you could pass on the numbers of the three Subpostmasters you have successfuly helped recruit so I can find out what they have been told and warned about by the NFSP (and the Post Office) before they took on their respective branches.

Please reply in the next seven days so I can publish this email and your response on postofficetrial.com

Many thanks

Nick"

Surprisingly, I did not even receive an acknowledgement to the above email, let alone substantive a reply.

I worry the NFSP is potentially opening itself up to a legal claim if it is actively helping potential Subpostmasters write business plans without coming clean about the risks.

And I worry that potential Subpostmasters are being sold a business opportunity without being told about the potentially catastrophic effect it could have on their lives if things go wrong.

I know Mr Hall's email works because when I last posted a piece on the NFSP he issued me with a veiled threat about using the NFSP logo. He refused to comment on the actual article, but insisted I remove the NFSP logo, claiming I was in breach of copyright. This forced me to ask someone to go and take photos of the poo-splattered plaque outside the NFSP HQ in Shoreham-by-Sea and use that instead.

It's tempting to see the NFSP as a joke organisation, but it's not. Its failure to deal with the Horizon issue the way a proper representative organisation should makes it at least partially culpable for what has happened to hundreds of its former members over the last 20 years.

If it is helping recruit Subpostmasters without spelling out the risks, it is acting immorally and potentially illegally.

Bates v Post Office: The NFSP

A seagull's thoughts on the NFSP sign outside their Shoreham-by-Sea HQ

Some comment on an ongoing issue which was highlighted on Day 6 of Bates v Post Office (see the write-up here).

If ever there has been an organisation which has utterly failed its members, it is the National Federation of Subpostmasters, the only "union" the Post Office will recognise.

I remember years ago talking to a Private Eye journalist (in the context of the Post Office's Horizon IT system) about the IT cock-up stories they have run down the years. I asked where they got their information about these public- sector IT disasters. He said, "the unions."

The journalist told me it was never whistleblowers within the IT companies who delivered these programmes, it was membership organisations, who, hearing the complaints of their frontline staff, got these stories into the public domain.

For as long as I can remember, the NFSP's position has always been that when it comes to Horizon, the Post Office can do no wrong. The moment any Subpostmaster claims something has gone screwy, the NFSP hangs them out to dry. That is a matter of policy. And that was before the NFSP was thrown out of the trades union movement and legally stopped from calling itself a union.

Why, though? To be fair, George Thomson, General Secretary of the NFSP when he gave evidence to the parliamentary select committee back in 2015, was pretty transparent. He told MPs:

"We have to be careful that we are not creating a cottage industry that damages the brand and makes clients like the DWP and the DVLA think twice. We do £350 million a week. We pay out £18 billion a year for the DWP in Government benefits. The DWP would not have re-awarded the Post Office card account contract, which pays out £18 billion a year, in the last month if they thought for a minute that this computer system was not reliable. 

"I understand that Mark [Baker the CWU rep for Subpostmasters], for the right reasons, has genuine feelings about it, and Andy [Furey also from the CWU] has as well. But if we are not careful, we damage the brand, we damage the franchise and we cost my members’ ability to sell the franchise. If we lose big contracts, Andy’s members lose their jobs as well. So we have to be careful that we do not create a cottage industry that is built on supposition."

George Thomson's argument is self-evident. If we start querying the effectiveness of Horizon, how do his members, when they want to retire or move on, sell their business to the next Subpostmaster who wants to take over? Public doubt over the integrity of Horizon devalues the value of the entire business.

But the logic is...  if a few Subpostmasters get suspended, sacked and lose their livelihoods because of what they are saying is problems with the Horizon system... it is a price the NFSP are prepared to pay to retain the value of a branch Post Office for the majority of Subpostmasters who haven't tripped up yet.

This is really important because the Post Office are always keen to draw attention to the fact that the "independent" NFSP supports the Post Office on Horizon. And it has made this explicit in it's opening submission to court on Day 1 of the trial:

"it should be noted that the National Federation of Subpostmasters (“NFSP”), which is the organisation which represents SPMs and their interests nationwide, does not support this action and does not endorse the factual premises of the Claims."

If you are in any doubt about the nature of the relationship between the NFSP and the Post Office, take a look at this - it is the current Grant Funding agreement between the NFSP and the Post Office signed in 2015, which sets out the way in which the Post Office will fund pays for the NFSP's existence and gives it a £1m special projects slush fund to boot.

This agreement is posted on the NFSP website, and was drafted by the same firm representing the Post Office in court today:

5.3  The NFSP shall not engage in the following activities or behaviours:

1. 5.3.1  undertaking any public activity which may prevent POL from implementing any of its initiatives, policies or strategies;
2. 5.3.2  undertaking or inducing a third party to undertake media or political campaigns against POL;
3. 5.3.3  organising or inducing a third party to organise public demonstrations, protests or petitions against POL;
4. 5.3.4  organising or inducing a third party to organise boycotts of POL's business;
5. 5.3.5  funding or inducing any third party litigation against POL; and
6. 5.3.6  other activities or behaviour the effect of which may be materially detrimental to POL.
   
   

I would suggest that if you are a Subpostmaster, and you read that, and you still expect the NFSP to represent your interests, you are fool.

If you want some kind of idea about how important Horizon is to the Post Office's business model, take a read of this document, which was discussed in court on Monday.

It is a chain of emails from 2010 about Pam Stubbs, the second Lead Claimant to take the stand in this trial. Mrs Stubbs, a Subpostmaster who didn't have any problems with Horizon until her terminal was moved to a temporary cabin, is being held liable for sudden, inexplicable negative discrepancies showing up on her terminal.

Look at the language in these emails. From Mrs Stubbs' testimony, no one at the Post Office has given a monkeys about the problems she is having. But now, it seems, from their own documents, they do, because she is questioning the integrity of Horizon.

Mrs Stubbs didn't see any of this until it was disclosed to court. Here are a few select quotes:

"This branch has a very large loss which the spmr is attributing to Horizon. We have already had one Flag case on this and this will remain high profile so the data does need to be retrieved."

"What we're trying to determine here is whether there is any discrepancy between the information sent in to the Live Service team by the spmr, Mrs Stubbs, and what the Horizon system is showing. She is alleging that her losses of £28k+ are due to problems with the Horizon system after it was relocated into a portacabin last October whilst the branch was being renovated."

"This is quickly turning into a bit of a problem.
This is a potential fraud where losses occurred when a spmr moved into a portacabin, but ceased the moment she was suspended and somebody else run the office. She did have a clerk, so it could transpire she has nothing to do with the losses. We are talking about £28k, a potential flag case, with MP's involved. The spmr is questioning the integrity of Horizon.
It looks like contracts/Chesterfield dealt with this themselves, although did speak to investigations. Once I received the paper work from Nigel, it looks like there are numerous activities that have taken place, including somebody sending in an auditor who sat with the spmr for half a day which clearly made matters worse.
I don't know why we were never approached to deal with this as a criminal investigation in the first instance, perhaps it was felt that it wasn't at the time. The auditor supposedly witness all transactions for half a day and witness Horizon being short, thereby corroborating her account and also now a potential witness for her... this is high profile. She has also joined the spmr's fight to question the integrity of Horizon. As it stands no investigation has taken place by us, various intervention has probably complicated this, yet because it is a question of Horizon integrity we can't simply ignore it, or drop it, but probably have some difficult questions ahead of us in terms of why has it taken so long for us to consider this criminal if this is the course of action we take."

It's all here if you want to read the original:

Internal Post Office discussion re Pam Stubbs problems 2010 by Nick Wallis on Scribd

 
On Horizon, the NFSP and the Post Office are one and the same. It is their business model.

Once a Subpostmaster takes on a Post Office, their entire exit strategy is dependent on the belief that  Horizon works and the Post Office will do the right thing by them.

And let's be clear, Horizon works for most Subpostmasters most of the time.

The problems arise when someone has a problem with Horizon. That's when they allege they are pushed over the battlements into a crocodile-infested moat. With all the shocks to the system that entails.

I have asked the NFSP for their comments. I will let you know what they say when they respond.

Day 6 - live tweets

Here is an unroll of my tweets of the day, which can either be viewed on the Thread Reader app, or in their original form here on twitter. The version below has been modified for ease of reading and formatting.

Morning. We are in court 26 at the Rolls Building for Day 6 of the Bates v Post Office common issues trial. Post Office representatives will be cross examined (xe’d) by Patrick Green QC (PG). First up, I think, is Nick Beal. #postofficetrial pic.twitter.com/CBDOmV70Wh

— Nick Wallis (@nickwallis) November 15, 2018

Yesterday’s write up of proceedings is here.

And today’s rather grouchy secret email has been sent to subscribers. Subscribe for daily secrets on postofficetrial.com

Here is yesterday’s write up by the @ft on ft.com/2PuCxd3

Mr Beal has been sworn in. He is the Head of Agents’ Development and Renumeration at Post Office.

PG asks about his witness statement in which he says he speaks about PO practices which happened before he started based on his own experience.

NB was a manager of crown post office between 1990 - 1996.

NB says his branches were computerised with paper records alongside it. Crown offices in the 90s used Echo Plus. 

PG says this contrasts with agents in branches using paper-based systems.

NB says there was a pilot computerised system in the Thames Valley in the 90s which was run alongside a paper-based system.

1996 - 2001 NB became a manager involved in the analysis and design of operational procedudres in advance of the rollout of Horizon (H).

PG wants to know if this was changes to agents or PO or both.

NB says both - it was about way transactions were conducted.

… with a view to automating them. NB was a about product-facing, not what the agent would see on the screen.

Judge asks what product-facing means.

NB says work related to products rather than back office. Accounting process is non product-facing. Which he didn’t do.

Still going through NB’s cv - in 2001 to 2004 he was Head of OPerational Finance and Planning. Head Office.

Just to be clear PG - Patrick Green QC - is representing the claimants and this is a cross-examination. 

PG points out that PO was making losses whilst NB was doing what he was doing and he was trying to improve performance.

NB agrees.

PG says one of the issues PO had recovery of losses after termination.

NB says it didn’t fall within his role.

PG is it fair to say H was a big change for SPMRs

NB Yes I would say that.

PG now taking NB through Angela van den Bogerd’s witness statement.

Got to the point in AvdB’s WS where she says handing over H data to SPMRs would not work. PO operates the system on behalf of the SPMR.

PG asks NB if he’s happy in his job and likes the PO.

NB says he is [his boss is in the room, but he is on oath]

PG now taking NB through the bumph they use when they recruit SPMRs about welcoming them into the warm embrace of the PO. 

Now talks about the booklet’s setting out of the training and support they might receive.

NB agrees it sets an expectation

PG but there’s nothing…

… surprising about this expectation at all?

NB agrees

PG Now “we care for all our employees, SPMRS and we cherish ourplace in the community.” is that a fair expectation of how the PO should behave?

NB Yes.

PG now on to training bumph “training is usually delivered by an agency trainer - it usually varies from office to office to meet your needs.” 

onsite training detailed customers service, accounting etc

ongoing training assessed by retail manager. PG says not surprising this?

mentions NB agrees. We supplied the booklet, so yes.

PG points out list of training services provided inc problem-solving “speedy accurate information on” handling complaints etc

PG no surprises?

NB agrees

Just a note - unless something in these tweets is in quotes it is not a direct quote - it is a paraphrase.

PG noting bumph “you will have received a full contract on the day you start working at the very latest” - it is a working document, demonstrates what we expect from you...

… and you can get from us.

NB says this document is from the late 80s/90s

PG it’s still being used

NB said it wasn’t part of his role when it was written. He took on the role of responsibility for the content of the contracts later…

Judge is querying NBs area of responsibility.

PG asks if the contract changed when H was brought in, as it was quite a big change on the ground.

NB says he believes the contract broadly stayed the same.

PG raising NB’s WS note about changing the contract for the NT programme (network transformation), “the core principles of the agent being responsible for running the branch, employing assistants, completing the accounts and liability for losses remained the same"

NB goes to p16 of NB statement in which is makes quite clear that the SPMR contract is standard with no scope for individual negotiation. 

PG asks about his familiarity with the old SPMC contract and modified (NT) contract

PG notes contract says SPMR can make a written response to any allegations of wrongdoing against them and can request a meeting with an area manager and be accompanied by a “friend”.

PG notes he can appeal against suspension in writing. "There is no formal...

… appeal against termination in 3 months notice.” but the SPMR can appeal against SUMMARY termination.

PG making clear the distinction and saying it is the same in both old and modified contract.

NB says he doesn’t know

PG calls up the relevant document…

PG says there is a difference between the contracts in that one does allow an appeal against 3 months termination and one doesn’t.

NB agrees

PG reason I asked you about this is that you’d have to be broadly familiar with the standard and modified contract and YOU didn’t know about the difference between the appeal procedures between the two documents (standard and modified SPMC).

PG asks about an internal guidance document on termination on notice and how to word the letter. He says the doc fails to draw attention to the distinction between the right or lack of appeal in the modified and standard SPMC.

PG drawing another distinction between standard SPMC and modded SPMC about payments made if a branch moves.

NB agrees the difference exists.

PG has just described the NFSP as an independent organisation which provides support to SPMRs.

He is talking about contract modifications in the newer NTC (network transformation contract)

PG asks about his negotiations with the NFSP

over the NTC and notes the liability for losses clause and how it changed. PG says although the language changed, the substance of the issue didn’t. 

NB agrees

PG now asking about 12 month notice period in NTC. That was a change in favour of SPMRs. On paper.

NB agrees.

PG asks how NTC was better for SPMRs

NB it was part of a wider NT programme…

NB that programme came with it a huge amount of investment from the government, SPMRs could refresh their stores, save money by changing the way the sold products…

judge says I think you were asked about the contract.

NB I think it gave them clarity on their responsibilities and allowed them to focus on running their business.

PG is looking at termination clauses in NTC.

Clause on termination if SPMR “fails to properly account for any money or stock” belonging to PO

PG so it’s right to say that the right of appeal was completely removed?

NB correct

PG goes back to the standard SPMC p1 - 23 contain general terms of SPMR appt. 

p14 “no breach of rules will be excused on the grounds of ignorance”

PG explain what your understanding of the rules are

NB this is in the 1994 SPMC. I didn’t write this

Judge: "I don’t think you’re being accused of writing it…”

NB gives explanation of the various documents an SPMR would expect to find in branch and how the rules would be contained therein.

PG now discussing the Manual and what that entails - the operation of the counter, the Horizon operating instructions, individual instruction from PO, updates to procedures etc. They agree this is a big bunch of sometimes big documents...

PG Discussing self-reporting obligation in new NTC. Did you know it was new?

NB don’t remember

PG Do you remember discussing it with the NFSP

NB No I don’t remember

PG now talking about branch focus the magazine for SPMRs

PG weekly?

NB yes but no longer paper copies since 2013.

PG draws his attention to a specific article in an issues entitled “Getting ready for summer”

PG are these instructions or advice?

NB don’t know I’d have to read it for sure.

PG talking about a specific "summer sizzlers” promotion. Is that an obligation on the SPMRs to do this?

NB I would say it was yes. I would also say if they failed to do this it wouldn’t be a contractual matter we would take up with them necessarily.

PG notes an example where SPMRs are told not to tell customers about a new promotion coming through. is that a contractual obligation?

NB yes as branch focus is part of the rules they need to follow

PG asks what if someone comes in asking for currency for a holiday and is told - best wait till next week. Is that a breach?

NB technically yes

PG would it have to be self-reported?

NB it’s not the sort of thing...

… we would take it up.

PG have a look a the rules

NB it says “material breach” i would not consider that a material breach.

PG so it depends on which customer they are talking to

NB and the fact you said it was the next day

PG what if the sums were huge

The obligation in branch focus was general to stop competitors from finding out about a new promotion. the specific example you just gave me is hypothetical of course, but the way you’ve explained it - no I would consider that a breach of contract.

we break for 10 mins.

We’re back. Nick Beal for the PO being xe’d by PG. I’m going to call him QC actually so you know what’s going on. PG is the claimants’ QC and I did the same with the PO QC David Cavender...

PG taking NB through his evidence re the list of changes to the PO contract down the years that he provided to the court. PG asks where it came from.

NB our legal team

[PO legal team used to be called Bond Dickinson - they are now Womble Bond Dickinson, which is a great name]

PG picking up a list provided by WBD - then BD - to a previous request and the one NB provided. Broadly the same, aren’t they?

NB broadly agrees

PG shows a big gap between two changes in the list of 9 years

PG thinking now - any material variations in that period?

NB not that...

NB …. I can recall.

QC points out a change wrt to a change in procedures which introduces financial penalties and training for SPMRs at their cost if their standards drop below requirement.

NB I don’t recall this

QC goes to letter which summarizes contractual

… obligations set out over the past few months in Operational Focus.

PG is this the successor to Branch Focus?

NB I don’t know.

PG reads out a specific change to procedure from this letter and contrasting it against the rules on performance in branch standards...

I think. There is a lot of to-ing and fro-ing on documents I can’t see.

We’re now looking at a branch standards booklet. When I say looking, they are. We hacks are just listening. I’m sure we’ll get to QC’s point soon.

QC explain to the court the difference between operational instructions and Operational Focus

NB I don’t know.

QC These instructions are referred to as branch standards. Is that all of the instructions or some of them?

NB I don’t know.

QC PO could require SPMR to pay for compliance training, including travel, where standards have not been reached.

NB reasonable costs, yes.

QC and some of these branches are quite remote

NB some yes

QC gets to letter to Pam Stubbs…

it shows outstanding debt 12 Feb 2010...

at the bottom there it says transactions due for this period £8K - total account balance c £17K - please settle this account by 25 Feb 2010 - by cheque in pre-paid envelope or debit

QC is that a postal instruction

NB it’s a request for payment

QC PO regards it as a debt...

… owed by PS

QC I understand it is a request for payment, but is it a postal instruction?

NB yes it is wrt to her contractual liability

QC asks him to look at memo from 8 Feb - where PS is being told request for payments will be put on hold whilst an investigation takes place.

Now that - says QC - is not an instruction - it is a notification?

NB yes.

QC goes to 11 march memo

QC please see attached request for payment which has been settled centrally for PO - failure to meet repayment terms by 21 March will lead us with approval from contract manager...

… to deduct the amount outstanding from your future remuneration. Is this a Postal Instruction?

NB it’s an instruction to her to pay the debts in the context of her contract. I don’t know whether you’d call that a Postal Instruction or not. So I don’t know.

We go back to negotiation of Network Transformation Contract (NTC) with the National Federation of Subpostmasters (NFSP). QC asks about the difference between Post Office Large, PO Mains and PO local. Says remuneration structure is different...

sorry - NB says … requirements of space and services on offer is different.

QC takes him to a pleading - PO’s case in defending individual claim of Mr Alan Bates (head of Justice or Subpostmasers Alliance) about what implied terms, if any, exist in the SPMC

QC notes in the pleading that PO can change SPMC with and without the agreement of the NFSP. It is admitted that there is an implied term in the contract that would stop PO from changing the contract dishonestly or in an arbitrary capricious manner.

NB says all changes to contract are discussed with the NFSP - they won’t agree to all of them, but we still discuss them. 

QC says the distinction is important. Changes with agreement and changes without agreement.

QC points out this stipulation in the pleading...

QC says admission by the PO that it won’t change contract dishonestly capriciously or arbitrarily is confined to the clause where there is NO agreement with the NFSP. 

QC says would it ever happen that the PO would change the contract dishonestly capriciously or arbitrarily

All agree that such a situation would be ridiculous.

NB I would not expect any changes to be made dishonestly, capriciously or arbitrarily about anything.

QC no one would!

NB [nods]

QC youre nodding

NB sorry, I agree

Both QC and NB both agree it would be totally ridiculous for the PO to make any dishonest, capricous or arbitrary changes to any contract, whether it has the agreement of the NFSP or not.

THEY HAVE SPENT ABOUT 5 MINUTES ON THIS.

Oh. we’ve moved on.

QC you explained in your WS the role of the NFSP - an independent org repping SPMRs. They were as a trades union?

NB yes the were

QC deregistered I think in 2012/3

QC NFSP became a trade association funded by the Post Office in 2015

NB yes

QC but the agreement allowed the NFSP to remain independent from the PO

QC draws attention to AvdB’s WS assertion that NFSP supports PO’s assertion that H is robust. And it supported the NTC.

QC moves to opening statement of defence by PO in which it says the SPMs...

… are small in number and the NFSP supports the PO’s position on the factual basis of this claim. Asks NB if they support H

NB says in the select committee the then GS did

QC what about the helpline?

NB haven’t discussed it recently

QC have you ever?

NB it will have come up yes

QC draws attention to NFSP purchase order for £250K to PO for activities in support of network transformation. 

QC so PO was paying NFSP for it’s support of NTC

NB it was for support activities around the implementation of NTC

btw Judge intervened about 5 mins ago to say “everyone comes to this court with a clean slate… I don’t particularly care what the NFSP thinks”

QC says “bear with me and I’ll… make it good, my Lord"

QC describes NFSP to PO memo ahead of NTC discussions - “dear Sue and Nick 23 want to set out a few things ahead of our meeting - including 23 months compensation for compulsory leavers”

QC some SPMRs were not given the oppo to stay on their old contract under NTC

NB agrees

QC there is a long-standing agreement with the NFSP regarding compensation of 26 months for SPMRS on termination

NB this is only when the PO does not wish to continue to offer services in that location

QC that’s my point - if there is termination, there is no payment...

QC if there is resignation to avoid termination - there is no payment

NB well actually if there is any resignation and the PO wishes to continue services, there is no 26 month payment from the discretionary fund.

QC notes Post office and NFSP signed a 15 year contract which mandates NFSP to serve all SPMRs. NFSP will get millions a year in exchange for dropping its membership subs. QC says NFSP was negotiating for its own survival whilst negotiating the NTC contract.

NB they were negotiating for the grant agreement at the same time as dropping of the membership subs… 

QC look at the line “please note a signed agreement with the blood of myself and Paula, that’s Paula Vennels, the Chief Executive...

… of the Post Office, is necessary on the future of the NFSP before any agreement on the NT and other points”

QC they’re linked, aren’t they?

NB explains what the NFSP were up to

QC would you think that a SPMR would expect the NFSP to be doing this whilst supposedly representing their interest?

NB I don’t know because I’m not a subpostmaster

Judge has asked about a statement made in passing by PG QC about documents he got last night. Judge wants to know how many documents he received last night - 350 pages of emails in 45 different changes.

Judge says he is not prepared to deal with a case of this importance which includes obviously necessary documentation being disclosed so late. Not acceptable. Orders a witness statement from the Post Office solicitors to be given to him by 4pm tomorrow explaining the delay.

We’ve had lunch. We’re now back to JFSA QC Patrick Green’s cross-examination of Nick Beal, Head of Agents’ Development and Remuneration at the Post Office.

QC now discussing an FOI about a request into NFSP’s change from a union to a limited company...

Which must be a historic first by anyone’s reckoning.

QC asking if he was involved in the decision as to whether to grant the FOI.

NB says he must have been.

QC notes the response saying we do have the info, but we have to balance it with commercial sensitivity etc

QC says Mark Baker from the CWU (who wrote the original letter) comes back saying you’re a public body, pls send the info

QC what happened next?

NB explains process

NB points out this agreement was eventually published on the NFSP website

NB confirms he was involved in this decisoin re the FOI

QC says but at the time of the FOI there was no indication it would be published in the future.

NB agrees

QC says you weren’t thinking about commercial confidentiality when you were prevaricating on giving this information

NB we were

QC why didn’t you tell mr baker

NB I don’t know

QC Mark Baker he will take this up with the information commissioner as the PO is not complying

PO sends a letter back to Mr Baker saying it’s being held back because of future publication

Mark Baker sends another letter saying you’ve changed your mind…

Whilst this to-ing and fro-ing is happening - it’s worth introducing you to Mr Baker - he is @CWUPostmaster

mentions and he was in court yesterday, but is not in court today to hear is name being discussed.

Mark Baker asks in a letter for the date on which the decision to publish the agreement was made.

QC you didn’t give it to him - why not?

NB don’t think it was made on any one date

mentions Judge asks in plain English how that is possible.

NB explains the process by which the decision was come to.

mentions Judge is starting to query why PG QC is pursuing this line.

QC notes a line in the agreement with the PO whereby the NFSP is prevented from doing anything that could materially harm the Post Office.

QC This action has been described as an existential threat to the PO

mentions QC so does this action fall under the terms of that grant agreement?

NB I don’t know

QC "so the NFSP cannot support this litigation because of the terms of your grant?”

NB I don’t know

QC points out that this action could materially affect the reputation of the pO

NB agrees

mentions QC goes into the implications for the NFSP’s grant if it were to support the litigation. It would essentially give the PO the right to claw it back.

mentions QC says and you wanted to keep that confidential

NB no it was always our intention to publish it

QC says but you wanted to keep those clauses about bringing PO into disrepute confidential?

NB No. We always intended to publish the document.

mentions The point PG QC is making is that the NFSP is in the pocket of the PO.

Judge intervenes to say to PG QC - whether your point is that the NFSP are contractually prevented from supporting this litigation, or because they’re being paid too much money by the PO - you’ve made yr point

QC goes back to a specific case where an SPM wants help from the helpline and cannot get help, so they turn to the NFSP for assistance.

SPMR wanted to sell her office, and wanted confirmation from PO about its future under the NT - QC notes that the NFSP rep in the letter is calling the helpline the hell-line.

NB l and p are quite close to the keyboard.

QC there’s a dash between hell - and line.

[there is a pause]

Judge  -the point is noted

QC the letter also mentions scripts 

NB they were scripts there to help people in that situation

Judge who provided those scripts? The PO

NB yes.

Advice eventually given that they either resign and lose their termination payment or they wait.

Judge points out that this point was accepted by the witness this morning.

PG says yes but this is a specific SPMR

Judge says well I don’t think it’s a controversial point, but we’d better find out.

NB indicates it is not controversial

PG QC finishes

PO QC stands up and asks a couple of questions about the date of introduction of various contracts. Had the NTC contract started being used in 2013?

NB Yes

PO QC goes back to the signed in blood NFSP document - aug 2013 - which required negotiation on NTC matters

PO QC asks what is that referring to?

NB it's referring to the revised terms - specifically the amount of compensation leaving SPMs will get.

PO QC so this was about how the NTC was going to be implemented as the terms of the contract itself had already been agreed?

NB I believe so, yes.

Sorry - drifted off there. The PO QC drew NB’s attention to a document which in NB’s mind shows the intention to publish the grant agreement with the NFSP was always intended.

Judge now asking if he knew about the difference in the drafting between the liability clause (responsibility for losses) until it was drawn to his attention?

NB may have done but it wasn’t front of mind

Judge how would you express it now?

NB does a pretty good 12:12 from memory

Judge - why, in terms of policy or any other reason, would a letter of termination not give the SPMR receiving it a reason for their termination

NB no immediate reason springs to mind

Judge onto witness statement - point put to you they were very similar to those compiled by the PO’s legal team. Why is there a 9 year gap between variations.

NB don’t know

Judge why did you start these variations from 2002

NB that’s when I believed Horizon was rolled out to most branches

Judge okay thank you you are free to go.

New PO witness, Paul Williams, being sworn in. I think he dealt with the appointment of SPMRs in the 90s.

Maybe, maybe not. Mr Williams is the “Restrictions Advisor” for the Post Office.

He did! “In 1992 I was… in charge of recruitment and remuneration for SPMRS.”

Then became a PO HR advisor in 1999

In 2000 Mr Williams moved into Subpostmaster contract role.

PW I’ve been doing it a long time - they are rather long documents but you get to know them quite well.

QC says your office dealt with Mr Alan Bates appointment [Bates is bringing this whole class action against the Post Office]

PW confirms they did but he did not have any personal involvement.

QC showing PW AB’s letter of employment. It says: "please find enclosed with this letter two copies of list of the main conditions attached to your employment. Sign one copy and return it to the agency recruitment manager."

QC picks up on “conditions of employment” term and note the clause which gives an SPMR 75% salary in the first 12 months. Explain that please.

PW it was a standard term, says new SPMR might underperform, drive away customers etc

QC so the SPMR might be entitled to think..

… their employment might be a little more long term than 12 months.

PW that’s fair enough

QC and he’s being asked to install a national lottery terminal which has a cost attached, but he should or might defray that cost by selling tickets

PW that’s not unfair

Judge asks PW to speak up

PW Pardon?

PW Oh - sorry. I thought I was shouting

Judge [booming] you can never speak too loudly in a room of this size

QC draws attention to a welsh language provision 

PW this was a standard provision

QC notes “it is expected you will render a personal service to the Post Office” PO prefer SPMR to provide a personal service

PW wouldn’t say preferred

PW it was expected

QC they got a contractual benefit from providing a minimum of 18 hours personal service. so it was a contractual benefit

PW yes

QC is it fair to say there are sensitivities around calling SPMRs employees?

NB yep - there were tribunals in the 90s...

PW and we sincerely believe they are not employees and it’s important to be precise in our language.

QC describes a document in which “dismissal” “employee” and “employment” is not used - yet personal service is something which is considered part of employment...

We had a break, we’re back. Final session of the day. Paul Williams still in the stand for the PO. PG QC questioning him for the claimants.

QC this personal services element to Mr Bates letter of employment was a standard document

PW no I disagree - this might have been something prepared for mr Bates specifically - although documents like this could be used elsewhere

QC “the incoming postmaster WILL provide a personal service of not less than 18 hours services a week” these are conditions of appointment. This is contractual, isn’t it?

PW [rambles about generalities]

Judge you’re being asked about this specific document

QC This is an internal doc on what has been agreed with Mr Bates.

PW yes [but goes on to not quite accept it is a contractual agreement]

QC points out Alan Bates did not get this is the reason this recorded internally, but not on the document AB signs so there’s no...

… record of an agreement held by the SPMR that they are providing a personal service.

PW a qualified yes.

Please note I didn’t catch all of PW’s qualification and it may have been a very good one. These notes are paraphrases NOT direct quotes unless they are in quote marks...

QC would Mr Bates get his SPMC

PW yes

QC but it doesn’t say that does it, it says it contains conditions of your employment, but nothing about the SPMC which it would, if it was included. And that’s a standard letter.

QC we say the contract of employment was not sent with this letter

PW - no. by this time - by AB’s - time - it was standard practice to include a copt of the contract in the letter of appointment.

QC and it had been for years?

PW since about 1995/6

QC why would it be satisfactory to ensure that an SPMR would only get their contract on the day of their employment?

PW well when I started in my NW area it wasn’t satisfactory

QC so other areas weren’t doing it

PW well…

QC if you say you started doing it - you are suggesting

… others didn’t.

PW says its’ possible some areas around the country weren’t doing it - that changed when we started recruiting nationally.

QC so it is possible AB did not get his contract - you didn’t send him it personally

PW no my team would have

QC but it’s possible they didn’t

PQ yes it’s possible that he didn’t get sent a contract but I don’t remember any SPMRs getting int touch to say they hadn’t had their contract

Judge - so you’re relying on SPMRs to get in touch to tell you they don’t...

… have their contract.

PW yes.

In the same way the PO QC was very keen to make the judge believe all the lead claimants did get their contract, Mr Green seems to want to shed doubt on this.

I guess if you don’t get the contract, you might not be under contract, so how can you

… be held liable for errors if you’re not properly under contract. [that’s my musings btw - not anything that was said in court!]

I don’t know the law in this area so I will stay out of it. Sorry. Back to the discussion.

On to transfer day:

QC they are committed to the Post Office at that stage so they pretty much have to sign what’s put in front of them

PW that’s fair

PW has also admitted they could have done better in making some of the documentation or contractual responsibilities clearer to SPMRs as the Post Office was “teased away” from being a government departement to a limited company.

QC notes there were doubts expressed by auditors from the early 90s about the ability of SPMRs to understand all their contractual responsibilities.

PW agrees.

QC notes that in the pre-Horizon days the 12:12 clause exists - SPMRs by error negligence of them or their assistants they are liable for all losses in branch.

QC moves onto losses and gains. Refers to a docu dated 20 Nov 1998: Introduction of Purpose. It is a policy document by the Counter to Risk Committee (or something that sounds very similar)

Computer is having its afternoon doze. Am going to reboot.

And we’re back.

Patrick Green QC has gone back to Pam Stubbs’ case - asked if PW had anything to do with her taking on a Post Office the day after her husband died and the document she signed that day.

PW No. I was northern territory

QC reads from letter of appointment of Pam Stubbs “PO will endeavour to support you through every stage of your appointment”. That was a standard letter wasn’t it?

PW yep

QC and let’s have a look at Alan Bates letter of appt. That was a standard letter too

PW yep

QC says your evidence is about what should or would have happened

PW it’s my recollection of processes 20 years ago. I have no clear recollection of the letters in hand, but I remember how my department was run and that included things like send out the SPMC as we should

And that if anyone asked for information we would help them

QC it’s been suggested that incoming SPMRs would be able to get info about the SPMC from the outgoing SPMRs. Was outgoing SPMR authorised to do this

PW on behalf of SPMR no - but they had every right to.

Correction - that should say:

PW on behalf of Post Office no - but they had every right to.

QC the death in service policy that you described was not followed in Pam Stubbs’ case.

PW I don’t know - there isn’t enough evidence to show what happened. [explains what usually happens]

PW Colin were were in touch, but perhaps we could be more sympathetic

QC she didn’t say you weren’t sympathetic, it’s that there was no application completed at all.

PW I can accept there may have been an informal transfer process that I would expect to be followed up...

… by a more formal process, albeit a truncated one, but there isn’t really enough information here to comment at all.

JFSA QC sits down.

PO QC stands up and goes back to the internal memo showing that Alan Bates was going to provide 18 hours personal service. Was it a stipulation or a notification?

PW the latter

QC what if he didn’t do it, was it a breach of contract?

PW No

PO QC what if he had ticked the box that he wasn’t going to provide 18 hours personal service - would that be a contract NOT to give a personal service

PW No.

QC why do you think you got the SPMC sent to AB

PW it’s what we did

QC How big is the contract?

PW 114 pages

QC how obvious would it be if it hadn’t been put in the pack?

PW self evident - that’s why I’m confident it would have been sent

QC how confident are you in the skill of your team

PW v confident. I had tremendous confidence in my team

QC ever receive any complaints about your...

… team?

PW No

PO QC has no further questions

Judge wants to know about his use of the word evidence wrt to a specific question and PW confirms he’s talking about contemporaneous document, not claimant evidence.

Judge also wants to know about

Rules, Postal Instructions and PWs admission that the language of the documents might not be clear enough.

Judge says he has to decide under what terms the SPMRS were actually engaged and PW used the terms

“lots of bits of paper"

Judge asks was he ever involved in an effort to simplify or codify all the documents into one document.

PW No.

PW leaves the box. 

Judge “Timetable, please Mr Green”

PG explains he wants to do two witnesses on Monday start Angela van den Bogerd if he can on Monday

Judge says he wants her done with by end of Tuesday. Mr Green protests as AvdB covers such a huge area. Judge points out he then has 7 witnesses for the next 2 days. Says there will be a ‘hard start” with the PO’s Mr Howarth on Mon 26th. PG agrees.

Judge now moves on to third trial.

He wants summer 2019.

PG stands up and says something about shifting the Horizon trial. Judge has already ordered this should be a 5 week trial starting 11 March.

PG then says he wants a mediation afterwards.

Judge says he can have a mediation at any time.

PG says my experience suggests that it would be better after the trial.

Judge says my only view is to move this group litigation forwards.

PG is speaking for himself and DC QC and says a mediation will help the litigation.

Judge really doesn’t see why he should wait until after summer - a gap of 6 months between Horizon trial and 3rd trial.

Judge clearly wants June 2019 on another lead issue, final resolution on some of the claims or final resolution on test claims.

Points out if we get common issues cleared, horizon issues cleared, then it is probably best to have a small number of claimants personal situations tried, perhaps less than 6 not necessarily any of these lead claimants. Perhaps even just two - one each identified by...

claimant and defendant. Judge has identified 5 June as possible (and I think in his view, preferential) start.

He rises. We are back at 10.30am Monday.

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No court tomorrow - and I’ve got another job on so that it on this story til Monday. ta-ra.